EXHIBIT 10.23
PARTIAL ASSIGNMENT OF LEASE AND ASSIGNMENT OF SUBLEASES
PARTIAL ASSIGNMENT OF LEASE AND ASSIGNMENT OF SUBLEASES (the "Partial
Assignment") made as of April 9, 2003, by and between INDEX DEVELOPMENT
PARTNERS, INC., a Delaware corporation, formerly named Individual Investor
Group, Inc. having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Assignor") and SLG XXXXX XXXXXX 000 X XXX, x Xxx Xxxx limited liability
company, having an office c/o X.X. Xxxxx Realty Corp. , 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Assignee").
W I T N E S S E T H:
WHEREAS, by Lease dated as of November 30, 1998 (as the same may have been
amended from time to time to date, collectively, the "Master Lease"), Assignee's
predecessor in title ("Prime Lessor"), did demise and lease to Assignor and
Assignor did lease from Prime Lessor the entire rentable area of the fourteenth
(14th) floor as more particularly described in the Master Lease (such floor
being hereinafter referred to as the "Original Premises"), in the building known
as 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building"), upon terms and at a
rental more particularly set forth in the Master Lease;
WHEREAS, Assignee is the current landlord under the Master Lease;
WHEREAS, pursuant to the terms of an Agreement of Sublease entered into
between Assignor and Xxxxxxxxxx & Co. Inc. ("Xxxxxxxxxx"), dated as of December
18, 2001 (the "Xxxxxxxxxx Sublease"), Assignor subleased a portion of the
Original Premises to Xxxxxxxxxx (the "Xxxxxxxxxx Premises");
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WHEREAS, the Xxxxxxxxxx Sublease shall end and expire according to its
terms on March 30, 2004 (the "Xxxxxxxxxx Sublease Expiration");
WHEREAS, pursuant to the terms an Agreement of Sublease entered into
between Assignor and Professional Access Limited ("PAL") dated as of May __,
2001 (the "PAL Sublease"), Assignor subleased a portion of the Original Premises
to PAL (the "PAL Premises");
WHEREAS, the PAL Sublease shall end and expire according to its terms on
March 30, 2004 (the "PAL Sublease Expiration");
WHEREAS, Assignor desires to assign to Assignee (i) all of Assignor's
right, title, interest and obligations, as tenant under the Master Lease, with
respect to the Xxxxxxxxxx Premises and the PAL Premises (jointly the "Assigned
Premises") and (ii) all of Assignor's right, title and interest as sublessor
under the Xxxxxxxxxx Sublease and PAL Sublease (jointly, the "Assigned
Subleases") together with the security deposits held pursuant to the Assigned
Subleases (Assignor's rights, titles, interests and obligations described in
clauses (i) and (ii) above, are referred to collectively as, the "Assigned
Interests"), subject to the terms and conditions set forth herein; and
WHEREAS, Assignee desires to (i) accept such assignment of the Assigned
Interests, and (ii) assume Assignor's obligations under the Assigned Interests
accruing from and after the Effective Date (as hereinafter defined), subject to
the terms and conditions set forth in this Partial Assignment.
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NOW THEREFORE, in consideration of the sum of Ten Dollars ($10) and other
good and valuable consideration paid by Assignee to Assignor, the mutual receipt
and legal sufficiency of which are hereby acknowledged, effective upon the
Effective Date the parties hereto hereby agree as follows:
1. Effective on April 30, 2003 (the "Effective Date"), Assignor hereby
assigns, transfers and conveys to Assignee all of the Assigned Interests, to
have and to hold the same unto Assignee, its successors and assigns, subject
only to the reservation of certain interests and rights by Assignor as further
set forth in Paragraph 10 below, from and after the Effective Date. On the
Effective Date, Assignor will transfer the Subtenant Security Deposits (as
defined in Paragraph 7 below) to Assignee. Simultaneously with the execution of
this Partial Assignment, Assignee will irrevocably authorize the letter of
credit held by Assignee pursuant to the Master Lease to be reduced to
$11,770.50, effective April 30, 2003, by delivery to Fleet Bank a duly executed
letter in the form annexed hereto as Exhibit C. Assignor and Assignee will each
pay one-half of the 1/4 of 1% transfer fee payable in connection with the
transfer of the Subtenant Security Deposits.
2. A. Effective on the Effective Date, Assignee hereby accepts the
foregoing assignment and agrees to perform Assignor's obligations, as tenant
under the Lease, with respect to the Assigned Premises and as sublessor under
each of the Assigned Subleases, in each case arising from and after the
Effective Date, and, except as set forth in Paragraphs 8, 9 and 10 of this
Partial Assignment, Assignee does hereby release Assignor and its successors and
assigns from and against any and all liabilities and obligations relating to the
Assigned Interests which accrue from and after the Effective Date, except that
nothing herein contained shall be deemed to constitute a release or discharge of
Assignor with respect to any obligation or liability of Assignor (a) accrued or
incurred under the Assigned Interests and outstanding and unsatisfied on the
Effective Date (including, without limitation, any deficiency in Assignor's
payment of Escalations under Article 5 of the Master Lease and (b) to a third
party (under the insurance and indemnification provisions of the Master Lease,
the Assigned Subleases or otherwise) arising prior to, on or after Effective
Date as a result of an event occurring or condition existing prior to or on the
Effective Date.
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B. Notwithstanding any provision in this Partial Assignment to the
contrary, including, without limitation, Section 2A, the foregoing is not
intended to be a release of Assignor from any obligations or liabilities to
Assignee, as landlord under the Master Lease, with respect to the remaining
portion of the Original Premises demised to Assignor, or a waiver by Assignee of
Assignee's rights or benefits under the Master Lease with respect to the
remaining portion of the Original Premises demised to Assignor. Without limiting
the generality of the foregoing, Assignor is retaining possession of the portion
of the Original Premises shown hatched on Exhibit A annexed hereto (the
"Retained Premises") and will comply with the terms of the Master Lease as they
relate to the Retained Premises. The Retained Premises constitute 4.72% of the
Original Premises, so that Assignor shall remain responsible for 4.72% of the
Base Rent and escalations payable pursuant to Article 5 of the Master Lease (the
"Retained Premises Rent"). Assignor will continue to pay 100% of the charge for
electricity payable to Assignee by Assignor pursuant to Section 8.6 of the
Master Lease.
C. The provisions of this Paragraph 2 shall survive the Effective Date and
delivery of possession of the Assigned Premises.
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3. Except as set forth in Paragraphs 8, 9 and 10 of this Partial
Assignment, Assignor's indemnification obligations set forth in Article 18 of
the Master Lease as they relate to the Assigned Interests shall survive with
respect to any claims which accrue prior to the Effective Date. The provisions
of this Paragraph 3 shall survive the Effective Date and delivery of possession
of the Assigned Premises.
4. A. Neither the partners comprising Assignee, nor the shareholders (nor
any of the partners comprising same), partners, members, managers, directors or
officers of any of the foregoing (collectively, the "Parties") shall be liable
for the performance of Assignee's obligations under this Partial Assignment.
Assignor shall look solely to Assignee to enforce Assignee's obligations
hereunder and shall not seek any damages against any of the Parties. The
liability of Assignee for Assignee's obligations under this Partial Assignment
shall not exceed and shall be limited to the value of Assignee's interest in the
Building and the land on which the Building is located (including the rents and
proceeds therefrom) and Assignor shall not look to the property or assets of any
of the Parties or any other assets of Assignee in seeking either to enforce
Assignee's obligations under this Partial Assignment or to satisfy a judgment
for Assignee's failure to perform such obligations.
B. Neither the partners comprising Assignor, nor the shareholders (nor any
of the partners comprising same), partners, members, managers, directors or
officers of any of the foregoing (collectively the "Assignor Parties") shall be
liable for the performance of Assignor's obligations under this Partial
Assignment. Assignee shall look solely to Assignor to enforce Assignor's
obligations hereunder and shall not seek any damages against any of the Assignor
Parties. Assignee shall not look to the property or assets of any of the
Assignor Parties in seeking either to enforce Assignor's obligations under this
Partial Assignment or to satisfy a judgment for Assignor's failure to perform
such obligations. Assignee may, however, look to all property and assets of
Assignor in connection with any action brought by Assignee against Assignor.
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5. It is the intention of the parties hereto that the estates acquired
hereunder by Assignee shall not merge with, or into, the fee interest or any
other estate, whether lesser or greater, in the Assigned Premises now held or
hereafter acquired by Assignee, its successors and assigns, nor shall said
estates be deemed surrendered on account of this Partial Assignment, and the
estates acquired hereunder by Assignee shall be and remain separate and
independent leasehold estates in the Assigned Premises until the date (the
"Merger Date") Xxxxxxxxxx and PAL vacate and surrender possession of the
Assigned Premises in accordance with the terms of the Assigned Subleases, as
they may be amended from time to time. On the Merger Date, it is the intention
of the parties hereto that the estates acquired hereunder by Assignee shall
merge with and into the fee interest estate in the Assigned Premises now held by
Assignee and said estates shall be deemed surrendered on account of this Partial
Assignment. Subject to the foregoing, from and after the Effective Date, the
terms of the Master Lease shall continue to apply to each of the respective
leasehold estates of Assignee hereunder in the Assigned Premises, and to
Assignor with respect to the Retained Premises, as if such respective estates
were the exclusive estates governed thereby.
6. Unless otherwise defined herein, all capitalized terms used herein shall
have the meanings ascribed to them in the Master Lease.
7. Assignor hereby represents and warrants to Assignee that it has not, at
any time, pledged, hypothecated, assigned or encumbered (a) the Master Lease or
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sublet the Assigned Premises (other than pursuant to the Assigned Subleases) or
in any other manner encumbered or demised the Assigned Premises or (b) the
Assigned Subleases. Assignor hereby further represents and warrants to Assignee
that (i) attached hereto as Exhibit B are true and complete copies of the
Assigned Subleases, (ii) to Assignor's knowledge, neither Xxxxxxxxxx or PAL is
in default of any of the terms, covenants or conditions of the Xxxxxxxxxx or PAL
Sublease, as applicable, to be observed or performed by Xxxxxxxxxx or PAL, as
applicable, and no condition exists which, with the giving of notice or lapse of
time or both, would constitute such a default, (iii) to Assignor's knowledge,
Assignor is not in default of any of the terms, covenants or conditions of
either of the Assigned Subleases to be observed or performed by Assignor and no
condition exists which, with the giving of notice or lapse of time or both,
would constitute such a default, (iv) the Assigned Subleases are in full force
and effect and have not been modified, amended or supplemented and they
constitute the entire agreements between Assignor and Xxxxxxxxxx or PAL, as
applicable, relating to the Assigned Premises, (v) Assignor is currently holding
letter of credits covering the security deposits under the Assigned Subleases in
the following amounts: $89,619.53 with respect to the Xxxxxxxxxx Sublease and
$55,608.84 with respect to the PAL Sublease (jointly, the "Subtenant Security
Deposits"); each of the letters of credit is in full force and effect, each of
them expires no earlier than May 15, 2004 and no drawings have been made under
either of them, (vi) all brokerage commissions and fees due in connection with
the Assigned Subleases have been paid in full and (vii) the Xxxxxxxxxx Sublease
Expiration and the PAL Sublease Expiration will both occur on March 30, 2004.
Assignor and Assignee further represent and warrant to each other that the
Master Lease is in full force and effect and that to the best of each party's
knowledge there are no defaults existing under the Master Lease and there exist
no valid abatements, causes of action, counterclaims, disputes, defenses,
offsets, credits, deductions or claims against the enforcement of any of the
terms and conditions of the Master Lease. Assignor and Assignee further warrant
and represent to each other that this Partial Assignment has been duly
authorized, executed and delivered by each of them and constitutes the legal,
valid and binding obligation of each of them, enforceable in accordance with its
terms.
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8. On the Effective Date, the Assigned Premises shall be deemed delivered
to Assignee in their "as is" condition, and Assignor shall have no obligation to
perform any work to prepare the Assigned Premises for Assignee. On the Effective
Date, Assignor shall be deemed to have abandoned and relinquished all of
Assignor's right, title and interest with respect to all property owned by
Assignor and located in the Assigned Premises. Assignor represents and warrants
that it owns all such property free and clear of any liens, claims or other
encumbrances. Assignee acknowledges that Assignor has made no other
representations, warranties or promises with respect to the Assigned Premises or
the Master Lease except as expressly set forth herein. The provisions of this
Paragraph 8 shall survive the Effective Date.
9. Assignor and Assignee each represents and warrants to the other that it
has not dealt with any broker in connection with this Partial Assignment.
Assignee shall indemnify Assignor for, and hold Assignor harmless from and
against, any and all claims for commission, fee or other compensation by any
broker, finder or like person who shall claim to have dealt with Assignee in
connection with this Partial Assignment and for any and all costs incurred by
Assignor in connection with such claims, including, without limitation,
reasonable attorneys' fees and disbursements. Assignor shall indemnify Assignee
for, and hold Assignee harmless from and against, any and all claims for
commission, fee or other compensation by any broker, finder or like person who
shall claim to have dealt with Assignor in connection with this Partial
Assignment and for any and all costs incurred by Assignee in connection with
such claims, including, without limitation, reasonable attorneys' fees and
disbursements. The provisions of this Paragraph 9 shall survive the Effective
Date.
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10. Assignor and Assignee shall apportion, as of the Effective Date, (i)
the Base Rent, electricity charges and escalation rent for real estate taxes and
operating expenses under the Master Lease payable with respect to the Assigned
Premises (the "Rent") and (ii) the fixed rent (except as hereinafter set forth),
additional rent and electricity charges (collectively "Sublease Rent") payable
under the Assigned Subleases. The net amount of the apportionments described in
the foregoing sentence shall be paid to Assignor or Assignee, as the case may
be, within thirty (30) days after the Effective Date. The parties' obligation to
adjust for Rent and Sublease Rent apportioned as of the Effective Date shall
survive the Effective Date. Notwithstanding the foregoing, Assignor and Assignee
agree that the fixed rent, escalations and electricity charge payable under the
(a) Xxxxxxxxxx Sublease exceeds the rent, electricity charge and additional rent
payable by Assignor under the Master Lease attributable to the Xxxxxxxxxx
Premises (the "Xxxxxxxxxx Profit") and (b) PAL Sublease exceeds the rent,
electricity charge and additional rent payable by Assignor under the Master
Lease attributable to the PAL Premises (the "PAL Profit"). The Xxxxxxxxxx Profit
and PAL Profit are being retained by Assignor and are not included as part of
the Assigned Interests. However, Assignee agrees to xxxx Xxxxxxxxxx for the
Xxxxxxxxxx Profit and endeavor (at no cost to Assignee) to collect same as agent
for Assignor. Assignee shall, provided Assignor shall not be in default under
the Master Lease, promptly remit to Assignor, as and when collected from
Xxxxxxxxxx, the Xxxxxxxxxx Profit, and if there is a default, any unpaid
installments of the Xxxxxxxxxx Profit shall be paid promptly after the default
is cured. Assignee shall have no liability to Assignor for any uncollected
portion of the Xxxxxxxxxx Profit. Nothing contained herein shall be construed to
prevent Assignor from maintaining an independent action against Xxxxxxxxxx to
collect the Xxxxxxxxxx Profit or requiring Assignee, at Assignor's sole cost and
expense and at Assignor's direction, to maintain an action against Xxxxxxxxxx to
collect the Xxxxxxxxxx Profit. Assignee agrees to credit the monthly PAL Profit
against the Retained Premises Rent and electricity charges payable by Assignor
under the Master Lease. The PAL Profit shall be so credited whether or not
Assignee collects the PAL Profit (or any portion thereof) from PAL. Since each
monthly installment of the PAL Profit exceeds the Retained Premises Rent payable
by Assignor, such amount which exceeds the credit shall, provided that the
Master Lease is in full force and effect and Assignor is not in default
thereunder, be paid by Assignee to Assignor promptly, and if there is a default,
such payment or payments shall be made promptly after the default is cured.
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11. This Partial Assignment shall be (i) binding upon the parties hereto
and their successors and assigns and (ii) governed by the laws of the State of
New York.
12. In the event Assignor or Assignee is in default under the terms of this
Partial Assignment (such party in default being the "Defaulting Party" and the
party not in default hereunder being the "Non- Defaulting Party"),
Non-Defaulting Party shall be entitled to recover from the Defaulting Party, and
Defaulting Party shall pay to the Non-Defaulting Party, an amount equal to all
reasonable costs and expenses (including all court costs and reasonable
attorneys' fees and disbursements), incurred by the Non-Defaulting Party in
enforcing its rights and remedies under this Partial Assignment, at law or in
equity.
13. This Partial Assignment may be signed in counterparts which, taken
together, shall constitute one and the same original instrument.
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WITNESS WHEREOF, this Partial Assignment has been executed and
delivered by Assignor to Assignee and Landlord as of the day and year first
above written.
INDEX DEVELOPMENT PARTNERS, INC.
By:
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Name:
Title:
SLG BROAD STREET 125 C LLC
By: X.X. Xxxxx Management LLC
By:
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Name:
Title:
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